Sulu state arbitration: Ridiculous claims of a long-lost sovereign

Rahmat Mohamad and Mohd Hazmi Mohd Rusli

• 04- 12- 2022 09:15 AM

ON Jan 22, 1878, an agreement was signed between the Sultan of Sulu with two British agents, Alfred Dent and Baron von Overbeck, ceding North Borneo to the British in return for the payment of cession money of 5,000 Malayan dollars annually to the Sultan.

The payment was increased to 5,300 dollars per year when nearby islands from Banggi Island to Sibuku Bay were also ceded.

Sabah was briefly placed under Japanese rule during World War II and later reverted back to British rule upon Japanese surrender in 1945.

Sabah remained a British crown colony until it gained independence within Malaysia in 1963.

As a component state of the Federation, Malaysia has invested billions of ringgit to develop Sabah, establishing a working government to administer this territory.

The heirs of the forgone Sulu Sultanate have not done much to display that they are in fact the sovereign rulers of Sabah.

Therefore, should Malaysia entertain the arbitral award amounting to RM63 billion put forward by the heirs of the Sulu Sultanate via an arbitration court in Paris, France?

International Law

Since 1963, Malaysia has effectively governed Sabah establishing numerous government agencies to administer this territory.

The people of Sabah acquired Malaysian citizenship, neither Filipino nor that of Sulu.

Foreign tourists, upon entering Sabah have to pass through Malaysian immigration posts and get their passport stamped, indicating international recognition that the sovereignty over Sabah is with Malaysia.

The heirs of the Sulu Sultan have not done much to indicate that they are the rightful owners of Sabah. Their silence in protesting against decades of Malaysia’s administration over Sabah is deafening.

Under international law, this inaction in itself nullifies the rights of the heirs of the Sulu Sultan over their long-lost claims over Sabah.

Non-binding award

As a sovereign nation, no court or arbitration may impose its decision or award respectively against Malaysia.

There is no enforcement mechanism to compel Malaysia to pay the sum of money to the heirs of the Sulu Sultan.

Nevertheless, exception to this general rule may apply if Malaysia agrees to submit its sovereignty to the court in deciding certain issues, like that of Pedra Branca case between Malaysia and Singapore that was decided by the International Court of Justice in 2008.

Another example could be attributed to the case involving land reclamation in the Straits of Johor near Tekong Island by the International Tribunal on the Law of the Sea (ITLOS) back in 2003, where ITLOS decided in favour of Singapore.

When the Permanent Court of International Arbitration (PCIA) issued an award in favour of the Philippines in 2016, China decided to ignore such an award as the proceedings were done unilaterally without Chinese involvement.

Taking into consideration Chinese reaction against the award issued by the PCIA in 2016, Malaysia should also consider doing the same as the arbitration was conducted ex-parte without Malaysia’s participation.

In addition, the Sultanate of Sulu has lost its sovereignty when it was dissolved by the Americans via the Carpenter Agreement in 1915.

Why should Malaysia honour a colonial treaty that was signed by an entity which is no longer a sovereign?

Conclusion

Historically, Sabah (particularly eastern Sabah) was part of the Sulu Sultanate.

Nevertheless, this sultanate was dissolved and no longer recognised as a sovereign since 1915, the same way the Malacca Sultanate was ransacked by the Portuguese in 1511 and the dissolution of the Riau-Lingga Sultanate by the Dutch in 1911.

The fact remains that Sulu is no longer a sovereign state.

Within less than six decades, Sabah has developed progressively as a component state within Malaysia more than it has ever experienced centuries under colonial rule.

In addition, Article 1(2) of the Federal Constitution states clearly that Sabah is part of Malaysia.

As Sabah is recognised globally as part of Malaysia, in no way Malaysia is obliged to entertain claims of descendants of a lost-lost sovereign.

As a full member of the United Nations, Malaysia is an independent sovereign state and its sovereignty over Sabah must be respected.

Rahmat Mohamad is a member of the Eminent Person Group (EPG) of the Asia-Africa Legal Consutative Organsation (AALCO). Mohd Hazmi Mohd Rusli is associate professor at the Faculty of Syariah and Law, Universiti Sains Islam Malaysia and a research fellow at the Australian National University, Malaysia Institute, Canberra, Australia. Comments: letters@thesundaily.com